On the Phenomenology of Law

Alex Rozoff

Before the start of
any research, one should define clearly: what exactly is the subject
to study. When dealing with law as such a subject, we face a really
strange situation. Many works on the theory of law exist, but the
question of definition of law is still open.

Everybody
knows that law is an instrument that regulates the relationships
between individuals, organizations, state institutions etc. However,
this is where the agreement on what is law ends, and many rivaling
concepts begin.

The most common definition of law is
something like the following: "Law is a binding custom or
practice of a community; a rule or mode of conduct or action that is
prescribed or formally recognized as binding by a supreme controlling
authority or is made obligatory by a sanction" (The
Merriam-Webster dictionary). This definition actually says that any
rule or mode of conduct prescribed by a supreme controlling authority
is a law, and no other ways to create a law exist. Also, from this
definition follows that a sanction from the controlling authority is
the only way to enforce the law.

However, the history
demonstrates that no legal system can be held by the brute force of
the state institutions only. Any law needs to have some degree of
recognition and respect in the society in order to be obeyed.

In
addition, the modern theory of law postulates the existence of some a
priory base for the law, such as human rights and natural rights,
which is supposed to exist independently of any acts of the state
authorities and to follow from some general philosophical principles,
such as social contract, democracy, egalitarianism etc.

Notice
that pre-modern societies had their own, different views on the
genesis of law and different principles to build the law upon:
traditions, religious commandments, caste system, the authority of
monarch, etc. These pre-modern principles have also been a basis for
a priory legal systems independent of any written laws issued by the
state institutions. The fact that the societies based on the Western
legal systems prosper now does not mean that no better law, based on
different principles, can exist.

Now let's return to the
question of the definition of law and approach it from another side.
A common alternative definition of law says that law is a system of
commonly recognized norms of conduct established by the state
authorities as obligatory for everybody. This definition supposes
that the people's customs and traditions are the source of any law,
while the state only codifies and documents it. It also assumes that
the social pressure is the main instrument of law enforcement, while
the state power is just a secondary one. From this definition also
follows the connection between law and justice. The main weak point
of this definition is the fact that it does not consider the
possibility for the state authorities to issue laws contrary to the
social customs, which is quite common in practice. These laws are
first enforced by the state power only, and only later they gain
public recognition, since people tend to accept the inevitable as
normal.

In order to combine the both definitions into a
single one, let's formulate it the following way: “Law is a
system of norms of conduct developed by the dominating class of the
society and imposed onto everybody with the use of power”. This
definition reflects also the fact that law is one of the
manifestations of the social hierarchy.

Notice that the
state is not mentioned in this definition; this is not accidental.
The state as an officially established system of public
administration is just one of the possible mechanisms to enforce the
interests of the dominant class of the society as a law. History can
show us examples of other such mechanisms, but law as an institution
of social regulation exists under any model of
administration.

However, our definition does not yet cover
an important aspect of the practical implementation of law: the
ritual. When the state issues a new law, it acts as more than just
public administration; it performs the ritual of legislation. In
courts, we can also see the ritual of applying the law: all the
judicial robes, coats of arms, titles, etc. serve this purpose. As a
result, any law, even an irrational one, gains a greater respect
among people than just a social norm of conduct could have.
Therefore, we have to mention the ritual side as a necessary aspect
of law, i.e.: “Law is a system of norms of conduct developed by
the dominating class of the society and imposed onto everybody with
the use of power and rituals”.

Now, let's make a
thought experiment. Imagine a society such that:
1. The laws are
obeyed only when the punishment otherwise would be inevitable and
greater than any possible gain from their violation.
2. If the
laws are obeyed, this is done only formally, just to avoid
punishment.
3. When somebody has violated the laws, all his
further behavior aims to avoid being caught.
4. Not only private
persons, but also state officials behave the aforementioned way.
On
the one hand, such behavior is rational (economically profitable) for
any individual. On the other hand, it's obvious that no rule of law
can exist in such a society. As mentioned before, no legal system can
be held by the brute force of the state institutions only.

We
can make a conclusion that any stable society needs to have an
irrational mechanism of law enforcement, such that violation of laws
will mean something more than just disregard of instructions. The
same way every religion is more than just beliefs; it has rituals
that give a greater meaning to its cult.

We can find many
examples of similarity between law and religion:
1. Any
established religion has its own interpretation of law, and often
also its own law system.
2. The slogans describing religion and
law are surprisingly similar.
Religion: “Credo quia
absurdum” ("I believe because it is absurd”)
Law:
“Fiat justitia et pereat mundus” ("Let justice be
done, though the world perish").
I.e. they both agree that
even absolutely irrational statements should be undoubtedly respected
and carried through.
3. A judge and a priest both pretend to act
not on their own behalf, but on behalf of the entity they are assumed
to represent (the state or god, respectively). This element of the
ritual allows them to feel not being responsible for the things they
are doing.
4. Religion and law both can prescribe to do actions
that look undoubtedly unethical and destructive for an external
observer, such as killing, torturing, vandalizing, etc.. They both
too can prohibit whatever that looks natural and beautiful for an
external observer: freedom, love, art, etc.. However, from their
internal viewpoint this all looks normal and righteous.

This
becomes now clear that law is much closer to a religious cult than to
any result-oriented practical activity. Any such system provokes a
crisis of itself sooner or later, since it's turning from philosophy
of talented scholars into business of irresponsible demagogues over
time. A similar process went inside the Christian church when it was
turning from a catacomb cult into a system of social
administration.

All of the above leads to the following
unpleasant conclusions:
1. Law is not pragmatic
(in the humanist sense). It aims to preservation of itself as a
system, not to improving the life conditions of any individual or of
humanity as a whole.
2. Law is not adaptable. Like
any other dogmatic system, it cannot accept some kinds of changes in
the social reality, as well as it cannot go without some of its
obsolete parts.
3. Law is not constructive. By
its nature, it cannot follow the technological and social progress by
developing new methods within its area of application, i.е. in
regulation of relationships in the society.

Thus, law in
its present meaning is just one of the cults that serve the dominant
system of social administration. This system has been ruling for the
recent two millennia, and the period of its rule is probably about to
end in this century. Instead of nation states, new social structures,
built on the corporate, professional, or worldview principle, will
dominate in the world. These new structures will surely have their
own mechanism for regulating inter-subject relationships. They will
probably call it “law” until no better word is invented for it.
This is the same way as we call Hammurabi's or Genghis Khan's code
“law”, although with our laws they have not more in common than a
manual to boiler equipment.

With the current pace of
progress, it's likely that in a couple of centuries people will be
reading our laws and getting puzzled: “What is this all about?
What do all these strange words mean? How could it function (if it
functioned at all, which is hard to believe)? And, ultimately, why
did they need this all?” They may probably conclude that their
ancestors from the early 21st century were a stupid and
underdeveloped folk. It's nice to be a stupid and underdeveloped
ancestor; the descendants will forgive you for
everything.